This Customer Agreement is between Zetaris Corporation Inc. (Zetaris) and the purchaser of the Product specified in the Order (Customer).

1.1     Use rights. Zetaris grants Customer a non-exclusive and non-transferable right to use, and permit its End Users to use, the Product, solely for the Approved Purpose during the Subscription Term, subject to compliance with the terms of the Agreement.

1.2     Product Restrictions. Customer shall ensure that:

(a)  neither Customer nor any End User reverse engineers, decompiles or disassembles the Product, views or gains access to the source code to the Product, or uses the Product to provide any product or service that is an alternative, substitute or competitor to the Product;

(b)  neither Customer nor any End User copies, develops any modification, enhancement, derivative work or other development of the Product or incorporates any Customer, End User or third party material into the Product (except as expressly permitted under the Approved Purpose);

(c)  neither Customer nor any End User uploads to the Product any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;

(d)  neither Customer nor any End User removes any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Product;

(e)  no person other than Customer, and its authorized End Users, accesses or uses the Product;

(f)   Customer promptly notifies Zetaris in writing if Customer wishes to permit a person other than Customer, or its authorized End Users, to access and use the Product;

(g)  neither Customer nor any End User installs, hosts, accesses, uses, uploads data or logic to, uses the output of, or otherwise exploits the Product, except as permitted under Section 1.1.

(h)  neither Customer nor any End User accesses or uses the Product by any unauthorized means, including using any bot, script, spider, crawler, scraper, API or automated device;

(i)   where Customer has purchased a license to the Software, Customer shall only install and host the Software in the Environment and shall only download, install and use the current version of the Software made available by Zetaris at all times and shall take all reasonable measures to protect the security, confidentiality and integrity of the Software.

1.3     Evaluation use. If Zetaris permits Customer to evaluate the Product prior to purchasing a subscription then, notwithstanding anything herein to the contrary:

(a)  the right in Section 1.1 is limited to access and use of the Product for a period of up to 30 days (Evaluation Period) solely for Customer s internal evaluation of the Product (without any right to use the Product for commercial, external or any other purpose);

(b)  Zetaris provides the Product as is and excludes all warranties, indemnities, obligations and liabilities under the Agreement (and, without limitation, Sections 9.1 and 9.4 of the Agreement shall be inapplicable) for the duration of the Evaluation Period; and

(c)  upon expiry of the Evaluation Period, Customer shall immediately cease using and delete any copy of the Product unless Customer purchases a subscription to the Product, in which case all terms of the Agreement apply from commencement of the paid Subscription Term.

 

2.1     Support Services. Zetaris shall provide Support Services for the Product for the duration of the Subscription Term (the Service includes the provision of the Support Services at no additional cost). Customer shall provide all information and assistance reasonably required by Zetaris to perform the Support Services.

2.2     Service Credits. If Customer wishes to purchase Service Credits from Zetaris, the parties shall agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.

 

3.1     Usage responsibilities. Customer uses the Product at its own risk and is solely responsible for:

(a)  ensuring that the Product, accessed and used (and in the case of the Software is installed and hosted) strictly in accordance with the Agreement. Customer is responsible for each act and omission of an End User in connection with the Product as though it were an act or omission of Customer;

(b)  ensuring that the Approved Purpose, Customer s and each End User s use of the Product, and all data and logic uploaded to the Product, complies with all applicable laws, regulations and contractual obligations;

(c)  obtaining all consents, licenses and approvals necessary to lawfully collect, upload, store, process and disclose all data and logic (including that protected by Intellectual Property Rights, confidentiality, or privacy) uploaded to the Product, all output of the Product and the Approved Purpose;

(d)  where the Customer has purchased the Service, implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Customer and its End Users when using the Service;

(e)  where the Customer has purchased the Software, secure the Environment and Software to the standards required under applicable laws, regulations and contractual obligations;

(f)   providing all support and maintenance required by its End Users other than the Support Services; and

(g)  the accuracy, truthfulness, completeness, veracity and legality of the output of the Product and the Approved Purpose.

 

4.1     Fees. The Fees are payable in consideration of Zetaris supply of the Product and any ancillary services. Customer shall provide information relating to its use of the Product as required to enable Zetaris to calculate the Fees payable. Zetaris may increase the Fees at any time, unless otherwise agreed in writing with Customer.

4.2     Invoicing and payment. Zetaris shall issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer shall pay all Fees invoiced by Zetaris, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by Zetaris are non-cancellable and non-refundable.

4.3     Late Payment. If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, Zetaris may:

(a)  suspend Customer s right to use the Product, provided that Zetaris has given Customer notice of the failure and Customer has not completely cured the failure within 14 days of the date of such notice; and

(b)  charge interest at a rate of 6 percent per annum above the current published prime rate of Bank of America,

in each case, from the due date for payment until the date that payment is made by Customer.

4.4     Verification. Zetaris may, upon at least 14 days notice, conduct an audit of Customer s use of the Product and compliance with the Agreement from time to time during the Subscription Term. Customer shall provide all access to the Environment (in the case of the Software), End Users, records, premises and personnel reasonably requested by Zetaris in connection with any such audit. Zetaris shall bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Product in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer shall immediately:

(a)  pay to Zetaris all additional Fees payable in respect of any excess use (at Zetaris then current list prices) in addition to Zetaris reasonable audit costs; and

(b)  take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.

4.5     Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. To the extent that Zetaris is required to withhold or pay any taxes, levies, withholdings, duties or other amounts imposed by taxing authorities (other than taxes on Zetaris income), Customer shall indemnify Zetaris for all such amounts.

 

5.1     Ownership. All Intellectual Property Rights in and to the Product and output of the Service Credits, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Product developed by or on behalf of Customer and End Users, shall vest and/or remain vested in Zetaris or its licensors. If any such Intellectual Property Right vest in Customer or any End User (or Customer or any End User otherwise acquires any interest in any such Intellectual Property Right), Customer hereby assigns, and shall procure that each End User assigns, that Intellectual Property Right to Zetaris with immediate effect. Customer shall take all further steps (including execution of documents) necessary to give effect to this Section 5.1.

5.2     No other rights. Neither Customer nor any End User receives any right, title or interest in or to the Product other than the right to use it expressly granted to Customer under Section 1.1.

5.3     Notice of infringement. Customer shall immediately notify Zetaris in writing upon becoming aware of any:

(a)  infringement or unauthorized use of the Product by any person, including any End User; or

(b)  claim by any person that use of the Product by Customer in accordance with the Agreement infringes any Intellectual Property owned by that person in the United States (IP Claim).

5.4     Remedial action. If the Product is the subject of an IP Claim, Zetaris may (at its cost and option) either:

(a)  procure the right for Customer to continue using the Product;

(b)  modify the Product such that it no longer infringes the relevant Intellectual Property Rights; or

(c)  terminate the Agreement and provide Customer with a pro-rata refund of any Fees paid in advance for use of the Product.

This Section 5.4 and Section 9.4 set out Customer s sole and exclusive remedy in respect of any IP Claim.

 

6.1     Rights. As between Zetaris and Customer, all rights in and to the Customer Data vest or remain vested in Customer at all times.

6.2     License. Customer grants Zetaris, its sub-processors and their respective personnel the right to Process the Customer Data solely for the purpose of providing, the Product, Support Services and as set out in the Agreement. Customer represents and warrants that it has obtained all consents, licenses and approvals from individuals, End Users and other third parties necessary to enable Zetaris, its sub-processors and their respective personnel to Process the Customer Data as set out in the Agreement.

6.3     Usage data and analyses. Zetaris may:

(a)  use data relating to Customer s and End User s use of the Product for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Product; and

(b)  freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Product and the Customer Data in anonymized and aggregated form such that neither Customer nor End Users are identifiable.

 

7.1     Privacy. Each party shall comply with all Privacy Laws applicable to that party (whether as controller or processor) in Processing any Personal Data comprised in the Customer Data. Customer acknowledges that Personal Data, other than that comprised in the Customer Data, will be Processed in accordance with Zetaris privacy policy.

7.2     Data Security. Zetaris shall implement reasonable technical and organizational security controls to protect the Customer Data stored in the Service against loss, unauthorized access, modification and disclosure (Data Breach) in accordance with applicable Privacy Laws, including:

(a)  not disclosing the Customer Data except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and

(b)  maintaining appropriate business continuity and disaster recovery measures for the Service, provided that Customer remains responsible for regularly downloading and backing up its own Customer Data using the Service.

7.3     Data Breaches. If either party becomes aware of any actual or suspected Data Breach affecting the Customer Data stored in the Service:

(a)  that party shall promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;

(b)  Zetaris shall provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach;

(c)  Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to Section 7.3(e);

(d)  Customer shall not reference Zetaris in any notification or communication relating to the actual or suspected Data Breach without Zetaris prior written approval as to the form and content of the reference; and

(e)  Zetaris may make a notification or communication about the Data Breach if Customer fails to do so and Zetaris is required to do so under applicable Privacy Laws.

 

8.1     Obligation of confidence. Each party (Recipient) shall ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this Section 8.

8.2     Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.

8.3     Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:

(a)  to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this Section 8;

(b)  to the extent required by law or the rules of any stock-exchange; and

(c)  with the prior written consent of the Discloser.

 

8.4 Existence of Agreement. For the avoidance of doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party’s name and logo, without being in breach of this Section 8

 

9.1     Warranties. Zetaris warrants that:

(a)  the Service will operate substantially in accordance with its published specifications during the Subscription Term;

(b)  the Software will operate substantially in accordance with its published specifications for a period of 90 days following being made available to Customer; and

(c)  Zetaris will provide the Product, Support Services and any Service Credits with due care and skill.

Zetaris shall, as Customer s sole and exclusive remedy, repair, replace or resupply any part of the Product, Support Services or Service Credits which do not comply with the warranties in this Section 9.1 within a reasonable period of confirmation of the non-compliance.

9.2     DISCLAIMER OF OTHER WARRANTIES. THE WARRANTIES SET FORTH IN SECTION 9.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY ZETARIS AND ZETARIS DISCLAIMS ALL OTHER REPRESENTATIONS, GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION TO THE FOREGOING, ZETARIS DOES NOT WARRANT THAT THE PRODUCT, SUPPORT SERVICES OR ANY SERVICE CREDITS WILL BE CONTINUOUS, FREE FROM ERRORS, OMISSIONS, DEFECTS, SECURITY RISKS OR VULNERABILITIES OR MEET THE REQUIREMENTS OF CUSTOMER OR ANY END USER.

9.3     Further Limitation of Remedies. If any representation, guarantee or warranty cannot be excluded at law, then to the extent permitted by law, Zetaris liability for breach of representation, guarantee or warranty is limited (at Zetaris option) as follows:

(a)  in the case of the Software, to the repair or replacement of the Software, the supply of equivalent Software, or payment of the cost of the same; and

(b)  in the case of the Service, Support Services or Service Credits, to the resupply of the Service, Support Services or Service Credits, or payment of the cost of the same.

9.4     Zetaris Indemnity. Zetaris shall, subject to Section 9.6, indemnify Customer (and its directors, officers, employees and agents) against all liability and expense, including reasonable attorneys fees, arising from or in connection with any IP Claim asserted by a third party against Customer (or its directors, officers, employees or agents); provided that Zetaris shall have no obligation to provide any such indemnification to the extent that the claim is subject to indemnification by Customer under Section 9.5 or is caused or contributed to by Customer, End Users or any third party product or service (including, without limitation, any modification of the Product, use of the Product in violation of the terms of the Agreement or combination of the Product with any third party product or service by Customer or any End User).

9.5     Customer indemnity. Customer shall, subject to Section 9.6, indemnify Zetaris and its Affiliates (and their respective directors, officers, employees and agents) against all liability and expense, including reasonable attorneys fees, arising from or in connection with any claim asserted by a third party relating to the installation, access to, use of the Product by, or the use or reliance on any output of the Product by, Customer or any End User, the uploading of data or logic to, or processing of data or logic with, the Product by the Customer or any End Users, or the activities of the Customer or any End Users in connection with the Product, including, without limitation, (i) any claim relating to the use of the Product in connection with Approved Purpose by Customer or any End User or the infringement or misappropriation of any third party rights by the Processing of any Customer Data in accordance with the Agreement, or (ii) any claim arising from or relating to any breach of Section 1.2, 1.3, 3.1, 5, 6, 7 or 8 by Customer or any End User; provided that Customer shall have no obligation to provide any such indemnification to the extent that the claim is subject to indemnification by Zetaris under Section 9.4.

9.6     Conduct of claims. The indemnification obligation of a party (indemnifying party) under Section 9.4 or 9.5 in respect of any third party claim is subject to the other party:

(a)  promptly notifying the indemnifying party of the third party claim;

(b)  permitting the indemnifying party to control the defense of the third party claim; and

(c)  providing (at the indemnifying party s cost) all information and assistance reasonably requested by the indemnifying party in connection with the defense of the third party claim.

9.7     Exclusion of Indirect Damages. NEITHER PARTY NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF ZETARIS, ITS LICENSORS AND SUPPLIERS) SHALL BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT, DAMAGES, LOSSES, EXPENSES OR COSTS, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF REVENUE, ANTICIPATED SAVINGS OR PROFITS (EXCLUDING AMOUNTS PAYABLE UNDER THE AGREEMENT), LOSS OR CORRUPTION OF DATA OR PROGRAMS, LOSS OF REPUTATION OR GOODWILL, LOSS OF OPPORTUNITY, LOSS OF USE, COSTS OF REPLACEMENT OR THE REMEDY OF COVER, OR BUSINESS INTERRUPTION DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES OR COSTS. The parties acknowledge that third party claims subject to indemnification under the Agreement and amounts due and payable under Section 4 represent amounts to be paid out of pocket by the affected party and are accordingly not indirect, damages, losses, expenses or costs limited hereby.

9.8     Limitation of Liability. The liability of a party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Customer under the Agreement in that Subscription Year; provided that the foregoing shall in no way limit the liability of a party: (i) under any indemnity obligations under the Agreement with respect to claims asserted by any third party (including any governmental entity); (ii) to pay Fees that are due and payable under the Agreement; or (iii) for any matter in respect of which liability may not be limited at law.

9.9     Injunctive relief. Customer acknowledges that damages are not a sufficient remedy for any breach by Customer or any End User of Sections 1.2, 1.3, 3.1, 4.4, 5, 6, 7 or 8, of the Agreement and that Zetaris is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those sections (in addition to any other remedies).

 

10.1  Subscription Term. The Agreement will remain in force for the Term, unless terminated earlier in accordance with this Section 10.

10.2  Suspension. Zetaris may suspend the right granted pursuant to Section 1.1 during any period in which Customer is in breach of the Agreement (subject to Section 4.3(a) in the case of late payment). Zetaris may also suspend the right granted pursuant to Section 1.1 during such period as determined in good faith by Zetaris to be necessary or advisable to prevent or mitigate actual or suspected illegal activity, damage to Zetaris systems, or threat to the integrity of the Product.

10.3  Termination for cause. A party may terminate the Agreement with immediate effect on written notice if the other party:

(a)  commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of Sections 1.2, 1.3, 3.1, 4, 5, 6, 7 and 8, is a material breach for the purposes of this Section 10.3; or

(b)  becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.

10.4  Consequences of termination or expiry. On termination or expiry of the Agreement:

(a)  all rights to the Product granted under the Agreement cease immediately and Customer shall immediately cease using Product, and delete all copies of the Software in its possession or control; and

(b)  where the Customer has purchased the Service, Zetaris shall have no further obligation to retain the Customer Data, provided that Zetaris shall permit Customer to access the Service for the sole purpose of downloading the Customer Data from the Service for a period of 30 days following expiry or termination; and

(c)  Customer shall immediately pay Zetaris all Fees due and payable as at the date of termination or expiry and, if Zetaris terminates pursuant to Section 10.3, all Fees payable for the remainder of the Subscription Term.

 

11.1  Entire agreement. This Customer Agreement, the Order and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.

11.2  Amendment. Zetaris may amend this Customer Agreement at any time by posting the amended version of this Customer Agreement on its website (https://www.zetaris.com). Any amended version of this Customer Agreement will only apply to Orders entered into following the date of the amendment to this Customer Agreement. The Agreement may otherwise only be amended by a written instrument executed by both parties.

11.3  Force Majeure Events. Zetaris is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.

11.4  Severability. The invalidity or unenforceability of any provision of the Agreement or the application thereof to any person or circumstances shall not affect or impair the validity or enforceability of any other provision herein. Any provision in the Agreement that might otherwise be invalid or unenforceable because of contravention of any applicable law shall be deemed to be amended to the extent necessary to remove the cause of such invalidation or unenforceability and such provision, as so amended, shall remain in full force and effect.

11.5  Transfer. Customer may not assign, subcontract, novate or otherwise transfer or dispose of its rights or obligations under the Agreement without the prior written consent of Zetaris. Any attempted assignment of the Agreement in violation of the foregoing restriction shall be null and void and a breach of the Agreement. Subject to the foregoing, the Agreement shall be binding upon the parties respective successors and assigns.

11.6  Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

11.7  Third Party Rights. There are no third party beneficiaries of the Agreement. No person other than Zetaris and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.

11.8  Relationship of the Parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.

11.9  Open Source. Zetaris Software utilizes open source software. For a listing of the Open Source software utilized and the applicable Open Source licence acknowledgements please refer to the Zetaris website.

11.10   Governing Law. Regardless of the place of execution, delivery, performance or any other aspect of the Agreement, the Agreement and all of the rights of the parties under the Agreement shall be governed by, construed under and enforced in accordance with the substantive law of the State of California, USA, without regard to conflict of laws principles. Each party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in California and waives any objection to proceedings being brought in those courts. Each party hereto hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any claim, litigation or proceeding directly or indirectly arising out of, under or in connection with the Agreement.

11.11   Interpretation. The headings herein are inserted as a matter of convenience only, and do not define, limit, or describe the scope of the Agreement or the intent of the provisions hereof. The parties have participated jointly in the negotiation and drafting of the Agreement. In the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of the Agreement. The Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.

 

In the Agreement, these terms have the following meanings:

Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party, where Control means, in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the direct or indirect ownership of more than 50% of the voting rights of such person or the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.

Agreement means the agreement consisting of this Customer Agreement, the Order and any SOW.

Approved Purpose means a specific approved use of the Product specified in the Order, provided that, if Zetaris permits Customer to evaluate the Product prior to purchasing a subscription, the Approved Purpose shall be further limited as set forth in Section 1.3.

Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate including the terms of the Agreement and, in the case of Zetaris, all source code to, Zetaris Data comprised in, and pricing for the Product; but, notwithstanding the foregoing, excluding any information that is generally known or available to the public or third parties without confidentiality restrictions (other than as a result of a breach of confidence).

Credits means any support, implementation, training, data migration or other services provided to Customer in conjunction with Product, not forming part of the Support Services, specified in the Order.

Customer Data means any data, information or material uploaded to, or Processed through, the Service by Customer or End Users, excluding Zetaris Data.

End User means any person who accesses or uses the Service through Customer s subscription or the Software licensed to Customer.

Environment means, in the case of the Software, the Customer s computing environment specified in the Order, and in the case of the Service, Zetaris computing environment specified in the Order.

Evaluation Period is defined in Section 1.3(a).

Fees means the fees, costs and expenses for the supply of the Product and specified in the Order and any Service Credits specified in the applicable SOW.

Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.

Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trademarks, trade names and service marks, in each case, whether registered or unregistered and existing in the United States or elsewhere in the world and whether created before or after the date of the Agreement.

IP Claim is defined in Section 5.3(b).

Order means an order form setting out the details of Customer s purchased subscription to the Product as specified in any:

(a)  Zetaris Order Form in respect of the Product executed by the parties; or

(a)  online order form completed by Customer and logged in Zetaris customer relationship management system,

including details of the applicable Approved Purpose, Environment, Fees, Credits and Subscription Term.

Personal Data means information about an identified individual or an individual who is reasonably identifiable, including personal information and personal data as defined in applicable Privacy Law.

Privacy Law means any applicable law governing the Processing of Personal Data, including (to the extent applicable) the Privacy Act 1988 (Cth), the General Data Protection Regulation (EU) 2016/679, the UK Data Protection Act 2018 (DPA), the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, the Privacy and Electronic Communications Regulations 2003, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act of 1996 and the California Consumer Privacy Act, as amended by the California Privacy Rights Act.

Process means to collect, store, use, copy, disclose or perform any other set of operations on.

Product means a subscription to the Service or a license to Software, as specified in the Order.

Service means the Zetaris Lightning Platform delivered by the internet as a service, including any Updates.

Service Credits means any support, implementation, training, data migration or other service not forming part of the Service or Support Services.

Software means the object code form of the Zetaris Enterprise Software specified in the Order, including any Updates.

SOW means a statement of work in the form of Schedule 1 setting out the details of the Service Credits to be provided by Zetaris, including the agreed scope and fees for the Service Credits.

Subscription Term means:

(a)  the initial term of Customer s subscription to the Product specified in the Order, including any Evaluation Period; and

(b)  successive 12 month renewal terms thereafter, unless Customer provides notice of non-renewal at least 60 days prior to the expiry of initial term or renewal term (as applicable).

Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.

Support Services means:

(a)  online, email or telephone support for Product defects that require access or changes to the source code for the Product (in the case of the Software, this only applies to the current and immediately prior version of the Software); and

(a)  making Updates available from time to time,

in each case, in accordance with the Zetaris Support Services Policy. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.

Updates means any new version, release, update, patch, fix, configuration or other modification of the Product made available by Zetaris to its customers generally during the Subscription Term.

Zetaris Data means data, information or material comprised in the Product as provided by Zetaris.

Zetaris Support Services Policy means the document set out in Schedule 2.

 

 

Schedule 1 SOW template

Statement of Work

Schedule 2 Support Services Policy

Zetaris Service Desk: Customer s initial point of contact for technical support and service requests. Zetaris will provide the Customer with the Zetaris Service Desk process, including details of the Zetaris Support Portal.

License subscription includes standard platform support (standard business hours, 5 days a week). Premium support (24x7) is available at additional cost.

Infrastructure and network support is out of scope of this license agreement.

Table 1 - Service Level and Response Times

Severity	Rating	Response Time	Resolution Time	Business Impact	Typical Events
1	Critical	4 Business Hours	Workaround; 1 day	Critical Business Impact Critical issue occurring on production system preventing business operations. A large number of users are prevented from working with no procedural workaround	* System hangs or crashes * Critical functionality not available * Data loss or data corruption * Large number of end users blocked from working * Impact is escalating quickly
2	Major	8 Business Hours	Workaround; 2 day	Significant Business Impact Major issue occurring on production system severely impacting business A large number of users are impacted by issue but they are still able to work in a limited capacity	* Significant performance degradation * Important functionality not available * Small number of users blocked from work * Impact is escalating
3	Medium	16 Business Hours	Workaround; 5 day	Normal Business Impact Issue causing a partial or non-critical loss of functionality on production system. A small number of users are affected	* Some system functions not available * Minor performance degradation * Small number of users impacted * Impact is not escalating
4	Low	48 Business Hours	Workaround; 10 day	Minimal Business Impact Issue occurring on non-production system or question, comment, feature request, documentation issue or other non-impacting issue	* Incorrect product behaviour without impact * Product question or enhancement

 

Support Service Obligations from Customer

Zetaris requires that Customer provides full cooperation, support, access to resources, and assistance to Zetaris as is reasonably necessary for Zetaris to provide support to the Customer. Customer will comply with the following in order to receive Zetaris support services:

(a) adherence to Zetaris Service Desk process for raising an incident, where the incident will be adequately defined, including but not limited to screen shots and log files;

(b) where permitted by the Customer security protocols, framework or requirements, remote access to the Software in the Customer s environment where the Incident is reproduced;

(c) adherence with Zetaris deemed standard operating procedures, Zetaris standard support operating model, Zetaris standard operating environment & Zetaris common work practices. Customer is also required to follow all of the advice and taken on all of the recommendations provided by the Zetaris team with respect to the implementation, maintenance, software updates, change processes and supportability of the Zetaris product; and

(d) any other assistance from Customer that is reasonably requested by Zetaris to resolve any support service issue.

Should Customer not comply with any of the above requirements relating to Support Service Obligations from Customer then Zetaris will not be required to provide Support Services to Customer, and cannot be held legally liable for any impact this support service issue or issues may have on the Customer. Also, if it is determined that Zetaris is unable to rectify a particular aspect of the software functionality, Zetaris reserves the right to withdraw from offering that aspect of software functionality to Customer without legal recourse.